Re-examination
When cross examination has ended it is time for re-examination to take place. This is when the barrister or other advocate whose witnesses has been cross-examined has the opportunity to put questions to the witness in order to clarify, explain or put in context the answers which have been given in cross examination.
When teaching aspiring barristers on advocacy courses there is one key rule about re-examination which is always drilled into them. That is, if in doubt don't. Far more questions in re-examination end up being utterly disastrous and making the case worse, than they do minimising the impact of cross-examination. There are a number of reasons for this.
The first is that questions in re-examination, like questions in chief, cannot be leading questions. That is, they cannot be questions which suggest the answer. Whilst that is the same problem that one has in evidence in chief, the effect is more acute in re-examination. In chief the witness is telling their story. Therefore it is easier to establish a flow, a sequence which the witness will be comfortable with. In re-examination you are trying to get them to qualify or explain answers they have given in cross examination. That is a much harder task, but subject to the same stringent rules. In civil cases of course, because witness statements are usually treated as the evidence in chief, most civil practitioners will in any event have little experience of examination in chief. This makes it even harder to deal in re-examination with the limitations that non-leading questions impose.
The position of the witness also causes difficulty in re-examination. The witness will have just gone through what might be a difficult and searching cross-examination. (If it hasn't been and if not much has emerged by way of concessions made, there would presumably be no reason to re-examine in any event, unless stupidly by asking a question in cross examination the other side have opened up a line of enquiry in re-examination which would not otherwise have been open to you). The witness may be feeling somewhat shellshocked and weary by the time it comes to re-examination. There is also a noted phenomenon in the witness who has just finished cross-examination, which can either be described as "demob happy" or "end of term excitement", referring respectively to the excitement and glee felt by service personnel or students when released from the formal discipline to which they normally subject. Having got through cross-examination, the witness is grateful that at last the ordeal is over. The person asking the questions now is one they will regard a friendly face, on the same side. They may have forgotten that their own lawyer cannot ask leading questions (if they ever knew). The question will be trying to get something without suggesting the answer. The witness, already having mentally relaxed, may be looking at the person asking the questions and wondering why on earth the lawyer can't just tell them what it is that they are supposed to say?
Just as there are few more satisfying things after a good cross examination than your opponent's re-examination making the concessions you have obtained even more definite, so there are few more dispiriting things than a re-examination gone wrong. Conducting a good re-examination is really difficult to do. Although most non-lawyers would regard cross-examination as by far the more difficult task, most experienced lawyers will tell you that re-examination presents most of their most tricky moments in practice.